1971 P Cr (PLP)

This is an appeal against the judgment of Sessions Judge, Larkana, convicting the appellants for an offence under sec tions 366 and 363, P. P. C. and sentencing them to undergo R. I. for 10 years under each count and further convicting them, for an offence under section 324/34, P. P. C. and sentencing to them undergo R. I. for two years. Appellant Janan was further con victed for an offence under section 13 (d), Arms Act, and sentenced to undergo R. I. for 2 years. The various sentences were ordered to run concurrently. The incident had taken place on 25th March 1967, at noon time in the land of Fazal Muhammad Kalhoro situated in the forest at a distance of about 1 miles from the 'river ferry. The first report was lodged by Murad at 6‑30 p.m. at Larkana Police Station situated at a distance of about 8 miles and it was recorded by Mr. Faiz Muhammad S. H. O. Murad com plainant along with his wife Mst. Saidan lived in the house of the father of Mst. Saidan situated in Farid Jatoi village. The appellants lived at a calls distanced from there. Appel lant Janan cultivated illicit connections with Mst., Saidan and, therefore, Murad along with his wife migrated to another village situated at a distance of about 6 miles. His father lived with him. About 1 months before this incident Murad left his pre gnant wife with her father for the purpose of delivery. She gave birth to a daughter and she was named Jam Zadi. They had already a son by name Muhammad who was aged about 2 years. On the day of the incident Murad along with his wife Mst. Saidan, his father Jivan and his brother‑in‑law Muhammad Salim left the village of the father of Mst. Saidan for the village where Murad had settled. After they had crossed the river and covered about 11 miles the appellants appeared. Appellant Janan had a gun while the others had hatchets. They forcibly dragged Mst. Saidan along with her two minor children after inflicting hatchet blow on the arm bf Jivan. Hatchet blow was given by Duro. Murad and his companions tried to rescue the woman but they were threatened. Janan fired gun shots in the air to keep them away. After the woman was taken away the complainant party returned to the village of his father‑in‑law and informed Saeed Khan nekmard of the village. Saeed Khan deputed his brother Taj Muhammad and nephew Ghulam Hyder to trace the woman, while he took the complainant to the police station where the first report Exh. 5 was lodged. Taj Muhammad and Ghulam Hyder went to the scene of offence from where the woman was abducted and tracked the prints. They re‑crossed the river and while they were going in the forest they heard they cries of the woman. They went running and found Mst. Saidan sitting with her children. No other person was with her at that time. Mst. Saidan informed them that she was brought by the appellants to that place and after lodging her there Duro went to bring the bullock cart as she was tired and could not walk any longer, while the other three appellants waited with her but when she raised cries on hearing their voice the other three appellants ran away. Taj Muhammad and his son Ghulam Hyder took the woman to the village reaching there at about mid‑night. On the following day the woman was produced at the police station. Subsequently the appellants were arrested. After usual investigation they were challaned. The appellants proclaimed their innocence and ascribed their implication due to enmity. They did not examine any witness in defence. The learned Sessions Judge accepted the prosecution evidence which was supported by the presence of injury on Jivan as proved by the medical evidence and the subsequent recovery of the woman from the forest by the two persons. It was further found by him that the enmity alleged by the appellants was not established. At the trial the prosecution had examined Murad com plainant, Mst. Saidan, Jivan, Saeed Khan, Ghulam Hyder, Kouro mashir, Muhammad Bachal mashir and Mr. Faiz Muhammad S. H. O. The evidence of the medical officer recorded 'in the committal proceedings was brought on record. I have considered the evidence of the various witnesses and I am of the view that the account of the incident given by the witnesses does not appear to be true and the case is not free from doubt. It has been established that they have given false evidence in some respects and it is unsafe to place implicit reliance upon their evidence. The first thing to notice is that the prosecution tried to improve upon the allegations made in the first report. It was stated in the first report that appellant Janan and Mst. Saidan were on terms on criminal intimacy and on that account the complainant migrated to another village. But in the evidence this allegation was refuted and was denied having been made. Instead it was stated that appellant Janan made overtures to the woman to invite her to sexual intercourse but she resisted and in order to avoid harassment by the appellants migration took place. Again in the first report an allegation was made that one Sajan had given hatchet blow to Jivan at the time of this incident but the remaining wit nesses did not support the complainant when they were examined by the police. Instead they made allegation that Sajan was not there and the hatchet blow was given by Duro Sajan was never sent up by the Police. Realising this situation the complainant resiled from the first report and attributed hatchet blow to Jivan as stated by the other witnesses. Undoubtedly an innocent person was implicated by the complainant in the first report. That being so his evidence must be viewed with suspicion. If the person is apt to make false allegations in the first report and subsequently resile from those statements in an anxiety to improve upon the case there is no certainty that some others may have also been similarly falsely implica ted. To exclude such a possibility it is necessary that there should be corroboration to the evidence but no such corrobora tion is available so far the identity of the appellants is con cerned. In this connection the learned Sessions Judge accepted the explanation of the complainant to the effect that the name of Sajan was added by the police at the instance of Muhammad Hassan uncle of appellant Janan. I am unable to share the view taken by the learned Sessions Judge. There Was no reason for the police to have obliged Muhammad Hassan and introduce a name at his instance. No connection between the police and Muhammad Hassan has been established. According to the prosecution story the complainant along with the woman and other two persons had crossed the river when the incident had taken place, but reading the evidence of Mst. Saidan in the light of what she had earlier stated in her statement recorded under section 164, Cr. P. C. the incident had taken place before the river was crossed and it was after she was abducted that the appellants took her across the river. This statement reflects upon the truth of the allegations in respect of the accusation of abduction. The recovery of the woman in the circumstances alleged by the prosecution is also highly incredible. The incident as has been alleged had taken place at a distance of about 1 miles from the ferry and it was all forest and there was no habi tation near about. Taj Muhammad and his son Ghulam Hyder who were deputed to trace the woman had not seen that place earlier. None had accompanied them to show the place. It is not possible to believe that without the assistance of any other person who was present at the time of this incident they were able to locate the exact spot and from there they started tracking the prints. Even the presence of the prints at that spot or up to the place from where the woman was recovered is highly doubtful. There was forest and the ground was unimpressionable. It is not the case that the woman was secured on the same side of the river at a short distance from the scene of offence. But the evidence of Ghulam Hyder shows that they had re‑crossed the river and after covering a long distance they reached the spot where the woman was kept. Admittedly Janan was armed with a gun and without affording any resistance they ran away or the arrival of the other two persons when they had abducted the woman and were not pre pared to leave her. It is, therefore, very doubtful, whether Taj Muhammad and Ghulam Hyder were at all deputed to trace the woman. This doubt is further deepened by the fact that although Said Khan claimed in his evidence that he had deputed those persons but he made no such disclosure in his statement recorded by the police. It is also an admitted position that after the woman was brought and produced before Said Khan and the woman was taken to the police his further statement was recorded but even in that statement he did not state that either he bad deputed Taj Muhammad and Ghulam Hyder to trace the woman or the woman was brought by them. It has also come in evidence that the villages were situated at a distance of 100 or 200 paces from the alleged place of recovery of the woman but none came there from that village although it is claimed that the woman had raised cries. Even the woman was not taken to that village for rest although it is stated that she was tired and could not walk further and on that account one of the appellants had left to bring the bullock cart. Taj Muhammad and Ghulam Hyder had never seen the appellant near about the scene of offence when they were said to have escaped. The only circumstance in favour of the prosecution is that there was an injury on the person of Jivan but according to the medical evidence the injury was simple in nature. Moreover, the true case must be supported by true evidence. In case the evidence has been found to be false the presence of injury on one of the witnesses cannot be used to corroborate that evidence. It is not for the appellants to show how Jivan bad sustained the injury. It is the duty of the prosecution to estab lish the case beyond any shadow of doubt. Originally the injury was attributed to Sajan but subsequently he was spared and instead Duro was substituted. In the circumstances the prosecution case suffers from numer ous doubts which have not been resolved. I am, therefore, inclined to give benefit of doubt to the appellants. Their appeal is therefore, allowed and they are acquitted. They are in custody and should be set at liberty forthwith. Before I part with this case it may be pointed out that the learned Sessions Judge had awarded‑10 years' R. I. for an offence under section 363, P. P. C. although the maximum sentence provided for that offence is '7 years. Appeal allowed.